James Madison Papers

To James Madison from George Joy, 26 July 1805 (Abstract)

From George Joy, 26 July 1805 (Abstract)

§ From George Joy.1 26 July 1805, London. “I have yet to thank you for your favor of the 10th Novr.2 I had of course communicated to Mr. Monroe the information I possessed relative to the south American Claims, and I greatly regret that his Efforts in that business have been unavailing.

“Should any farther measures be adopted which can with propriety be communicated I should be greatly obliged by a line from you on the subject.

“Mr: Monroe from whom I have just parted has been kind enough to say what he could on the subject, and I have this day recd: a letter from my old friend Mr: Young at Cadiz by which, I am glad to find, he is returning to his post and the Government likely to have the benefit resulting from his long residence & approved fidelity. I presume the President will have taken some decided measures long before this can reach you, and having sought for redress in vain I cannot but apprehend the natural and usual result in such cases; but as Mr. Monroe observes that the Court of Spain brings no Charge against the U.S. and their Policy is Peace, I hope it will still be maintained: tho’ I find it a very general opinion, and remember it to have been Mr Young’s before he left Europe, that to effect anything with Spain a higher tone should be held than heretofore.

“I cover, lest Mr: Monroe should not be apprisd of this Conveyance, the Copy of a recent adjudication in the Court of Admiralty here, which is at this moment the subject of much Conversation;3 & on which I have been conferring with Mr: Monroe this morning. I take the doctrine of the Law to be with the Judge; and should expect little advantage from combating the opinion as such; but for the expediency of a relaxation that will reach such cases there is much to be said; and much I think may be said with effect. A nation at war assumes and is generally allowed to possess a right to distress her enemy into reasonable terms of peace; and the politeness among nations (Comitas inter gentes) allows each to be judge of what is reasonable in his own cause, while they confine themselves to cutting each others throats. In the exercise of this right it cannot, I fear, be denied that the belligerent may distress and even destroy the Commerce of the Enemy; and the plea of the neutral that he is injured will hardly avail among Civilians when he can only alledge the prevention of a trade growing out of the War, denied him in time of peace, and allowed him for the express purpose of relieving the distressed party from that pressure for which the blood and treasure of the other are expended. Nor is it the relief of Individuals only that is effected by these new Channells of sale and supply; they carry the Duties and Imposts by a small detour into the public Coffers, without even the degree of diminution to which the property of the Citizen is subjected by extra freight and other Charges.

“On the other hand the Ideas that I formerly suggested to you, of the benefits derived to this Country from the increase of wealth in America, demand, in a political view, the adoption of other principles, and raise large considerations on the other side of the account.

“Without troubling you with a recapitulation of these motives, I will only say here that I had occasion to propound them in a late Correspondence with the Council thro’ the Duke of Montrose, and, (whether from those motives or not I cannot say, for Ministers rarely assign their reasons,) the result of the discussion was that the privilege of neutrals in return Cargoes under licence from Enemy Colonies was extended from 50 to 200 perCent advance on their Exports from England.

“Now that this doctrine, of the benefit of one nation tending to that of another with whom she has intercourse, has obtained with the President, is evident from the first lines of the Message that you were so good to enclose me:4 it must then be congenial with his views and may be fairly urged by him in the discussion of objects of reciprocal advantage.

“That Mr. Monroe entertains similar notions, in preference to the doctrine of rivalry and mutual annoyance, was apparent in the first half hour I ever spent with him, and on suggesting to him this morning the Ideas that I am now taking the liberty to trouble you with, I was glad to find him according with them, entertaining a high opinion of sir William Scott whom he knows personally, intending to treat the subject with moderation, and determined to do all in his power to remove the Evil. Besides the political Arguments for a Compact favorable to the navigation of the U.S. there are certain Claims of Justice resulting from a justifiabl⟨e⟩; ignorance of the Law in this Case, which a common Arbiter, if such a thing could be between nations in the shape of a Lord Chancellor, would consider as mitigating the rigour of the Law—the doctrine of Ignorantia Juris non excusat may surely be combated in a case where the Judge has varied from himself, and where his former decisions may act as a snare5 it is not however in the doctrine that sir Willm. differs from himself, or from the Lords, but in the Construction of Evidence; and since he is bound by the rule of Law where such rule exists, I confess I do not see how he could avoid the present decision.

“When Nat Fellowes of Boston6 received Cargoes on one side of his wharf passed them thro’ his Ware houses and into other ships on the other side; had I been a Judge of the Admiralty I should have pronounced it all Evasion; but had I once acquitted a ship under these Circumstances and my Judgement had been acted upon, if I were afterwards overruled and obliged to conform to a superior tribunal, I should feel it my duty to do all in my power to prevent the injury of those who were acting under the authority of my opinion; besides I am not a Judge of the Admiralty, but a Quaker, and disposed to favor the neutral at all points—when history shall furnish a fair average of examples in which Justice has been obtained by the sword—the Guilty punished and the Innocent relieved, I shall if I live, (after many transmigrations alas!) favor the Laws of war: but while one party is always and both are often in the wrong I shall be disposed to make the debatable objects of Life flourish on neutral ground. Nations are apt enough, God knows, to engage in wars without the stimuli of plunder; and rarely sheath the sword once drawn, till they are exhausted, without either having obtained its object—let the wise then flourish in abundance of peace as long as the moon endureth that the nations of the Earth may learn wisdom and War be Known no more. So much par parenthese; for these are sentiments that will hardly be allowed the place of a makeweight in political discussions, in which men must be considered as they are, not as they ought to be.

“Now as sir William Scott is esteemed on all sides an excellent man, and does not appear chargeable with any undue Bias, but on the contrary has shewn the most liberal dispositions towards neutral Claimants, I think it a circumstance favorable to negotiation on this subject that he is so highly respected in the Council and so much relied on in discussions on those points. I should think it probable, for instance, that he would admit the penalty of Confiscation in such cases to be too great, and consent to some defined evidence of the colonial property becoming part of the national stock of the U.S. that would prevent evasion on the one hand and litigation on the other; and as the changing of property is a matter of mere form attended with considerable expence and no benefit to any one I should hope it might be done away by agreement; but I should not in this case urge the direct voyage, lest it check the generation of seamen. The business requires management—the direct trade of the neutral to enemy Colonies and back to his own ports is a subject of relaxation from the principle, except so far as it was carried on in time of peace; and this including the smuggling of Coffee and sugar was trifling compared with the War trade. It requires promptitude also; for there is no Knowing what Russia may do and while she is neutral the possibility of an armed neutrality may have it’s influence. The state of things in spain too, which it is a subject of serious regret were not followed up at the time of the Louisiana purchase, makes it desireable that there should be no cause of altercation here.

“Such are the opinions that I have taken the liberty to suggest to Mr: Monroe, Mr. Erving being present, and the inclination of my own opinion is that the difficulties will be removed, for I have no belief in any fresh orders from the Government here, tho’ the Proctors at the Commons are no doubt sending Circulars to the Cruizers who will intercept any Ships they may meet under similar Circumstances.”

RC and enclosure (DLC). RC 8 pp.; marked: “(Copy) 1st. per Philadelphia.” For enclosure, see n. 3.

1George Joy (b. ca. 1760) was the son of a Massachusetts Loyalist who took his family to Great Britain at the outbreak of the American Revolution. Joy remained in London, where he wrote newspaper essays, pamphlets, and letters to American and British politicians in support of American neutral rights. In December 1807 he was named consul at Rotterdam. In extreme old age he spent a year and a half in debtor’s prison. He wrote frequently and at length to JM, who seldom answered. He died sometime between February 1844 and February 1853 (PJM-PS, 1:30–31; Senate Exec. Proceedings, 2:60, 63; Times [London], 22 Nov. and 26 Dec. 1842, 22 Feb. 1844, 15 Feb. 1853).

2Letter not found (calendared in PJM-SS, 8:280).

3The enclosure (3 pp.) is a copy of the 23 July 1805 condemnation by Sir William Scott of part of the cargo of the Enoch, Doane, consisting of coffee, sugar, and barrel staves traded from Martinique to Antwerp, for carrying produce from an enemy colony to the United States and then reshipping it to the mother country, a trade that had been allowed under the Polly decision of 1800 but was forbidden by the Essex decision announced on 22 June 1805. Scott argued that unloading a cargo and paying duties did not alone prove that there was no intent to carry the cargo to the mother country, and other evidence must be considered. In the case of the Enoch the fact that a charter party existed to carry the cargo to Antwerp from Boston proved that the original intention was to make a continuous voyage (Alexandria Daily Advertiser, 20 Sept. 1805; Boston Independent Chronicle, 23 Sept. 1805). For a discussion of the Polly and Essex decisions, see Perkins, First Rapprochement, 88–89, 177–81.

4For Jefferson’s fourth annual message to Congress, see Ford, Writings of Thomas Jefferson, 8:323–32.

5Joy placed an asterisk here and added at the bottom of the page: “*‘An American has undoubtedly a right to import the produce of the spanish Colonies for his own use; and after it is imported bona fide into his own Country he should be at liberty to carry it on to the general Commerce of Europe. ‘It is urged that it would not be sufficient that the duties should be paid and that the Cargo should be landed: if these Criteria are not to be resorted to I should be at a loss to Know what should be the Test; and I am strongly disposed to hold that it would be sufficient that the Goods should be landed and the Duties paid.’ Polly-Laskey-feb: 5th 1800.”

6Nathaniel Fellowes (d. ca. 1806) was “a firm republican & one of the wealthiest merchants of Boston.” In 1801, during Jefferson’s reduction of the navy, he bought the sloops of war Merrimack and Warren. In 1804 he was one of the original incorporators of the Union Insurance Company (PJM-SS, 2:232; Boyd, Papers of Thomas Jefferson, 34:viii, 110–11, 398; New York Mercantile Advertiser, 25 June 1801; Boston Columbian Centinel, 9 May 1801; Boston Independent Chronicle, 4 Apr. 1804, 31 July 1806.

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